Citation Nr: 1814543 Decision Date: 03/13/18 Archive Date: 03/19/18 DOCKET NO. 14-15 850A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a skin condition, to include as due to herbicide exposure. 2. Entitlement to service connection for erectile dysfunction (ED), to include as due to herbicide exposure, and/or as secondary to service-connected post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: South Carolina Office of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Nelson, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1969 to November 1970, including service in Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which denied service connection for the claimed disabilities. In November 2017, the Veteran testified in a Board hearing before the undersigned at the RO, and the transcript is of record. The Board notes that the Veteran also appealed the issues of entitlement to service connection for PTSD and amputated left hand. During the pendency of appeal, however, service connection was granted for both issues. The RO granted service connection for PTSD in March 2014 and for amputated left hand and arm in June 2017. Because the Veteran was awarded service connection, these issues are no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). An appeal of an increased rating for partial amputation of (distal) third digit of left upper extremity was also initiated; however, in March 2017, before the issue was transferred to the Board, the Veteran indicated in writing that he wished to withdraw the appeal. The issue is therefore no longer on appeal. 38 C.F.R. § 20.204 (2017). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND VA's duty to assist includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d) (2012). With regard to the skin condition claim, the Veteran contends that he has had skin problems since service in Vietnam. See the October 2010 statement, April 2012 notice of disagreement, March 2017 DRO hearing transcript, November 2017 Board hearing transcript. The Veteran's DD Form 214 and military personnel file clearly reflect that the Veteran had service in Vietnam. His exposure to herbicide agents such as Agent Orange may therefore be presumed. See 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307. In March, 2011, the Veteran was afforded a VA skin examination. The examiner indicated that the Veteran had a papilloma removal from his right axilla while in service in Vietnam, which healed well and had no complications. The papilloma had not recurred, and neither the Veteran nor the examiner was able to find any scar or residual from the papilloma. No mention of any other skin condition is noted in the examination report. In VA treatment records, however, the Veteran is noted to have various skin conditions. In January 2003, he had a skin lesion under his right arm. In December 2008, the Veteran reported having an "occasional skin rash" that he thought was related to Agent Orange exposure. In September 2012, the Veteran reported having problems with his skin. In May 2013, he reported having a rash under his arms at times. In September 2014, the Veteran was noted to have skin lesions on his chest and scalp. He had a dermatology consultation, in which he was noted to have a shiny, erythematous patch on his chest and bilateral helices of the ears, right temple, and right preauricular cheek. He was assessed as having an atypical rash that was benign appearing, and prescribed two creams. In follow-up appointment in March 2015, the Veteran was noted to have a benign vascular neoplasm. Finally, in August 2016, the Veteran was treated for an inflamed seborrheic keratosis on his right superior shoulder. Papillomas, benign vascular neoplasms, and seborrheic keratoses are not included among the disabilities that may be presumptively service-connected on the basis of herbicide exposure. 38 U.S.C. § 1116(a); 38 C.F.R. § 3.309(e). However, service connection may still be granted on a direct basis for any of these diagnoses as the result of the Veteran's in-service exposure to herbicides. See Polovick v. Shinseki, 23 Vet. App. 48 (2009); see also 38 U.S.C. § 5103A)(d)(1); Barr v. Nicholson, 21 Vet. App. 303 (2007). Remand is therefore required for an addendum medical opinion on the etiology of these skin diagnoses, to include whether they were caused or aggravated by in-service exposure to herbicides. With regard to the ED claim, the Veteran similarly contends that the condition was caused by his exposure to Agent Orange in Vietnam. He alternatively asserts that the ED was caused by the stress and anxiety from flashbacks that are due to his service-connected PTSD. The Veteran states that the ED started as soon as he returned from Vietnam. See the October 2010 statement, April 2012 notice of disagreement, March 2017 DRO hearing transcript, November 2017 Board hearing transcript. As discussed above, the Veteran's in-service exposure to herbicide agents such as Agent Orange is presumed. ED is also not included among the disabilities that may be presumptively service-connected on the basis of herbicide exposure, but service connection may be granted on a direct basis for ED as the result of in-service exposure to herbicides. Remand is therefore required to obtain a medical opinion on the issue of whether the ED may have been caused or aggravated by in-service exposure to herbicides. Remand is also required to obtain a medical opinion on whether the Veteran's service-connected PTSD caused or aggravated the ED. See McLendon v. Nicholson, 20 Vet. App. 79 (2006), 38 U.S.C. § 5103A(d) (2012). On remand, updated VA treatment records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain from the VA healthcare system all outstanding, pertinent records of evaluation and/or treatment of the Veteran from February 2017 to present. All records/responses received should be associated with the claims file. If any records sought are not obtained, a written statement to that effect should be incorporated into the record. 2. Contact the VA examiner who conducted the March 2011 VA skin examination (or if they are no longer available, a suitable replacement) and ask the examiner to review the record and prepare an addendum to the medical opinion. For each diagnosed skin condition present during the pendency of the Veteran's appeal, to include the papilloma, benign vascular neoplasm, and seborrheic keratosis, the examiner should state whether it as least as likely as not (50 percent probability or greater) that the disorder arose during the Veteran's active military service or was otherwise related to his service, to include being caused or aggravated by in-service herbicide exposure. The examiner should give the reasons for the opinion(s) given and support the reasons with accurate facts. If the VA examiner determines that further examination is necessary in order to render the requested medical opinion(s), the AOJ should schedule the Veteran for such examination. 3. Schedule the Veteran for a VA examination to determine the nature and likely etiology of any current erectile dysfunction. The entire claims file, including a copy of this REMAND, must be reviewed by the examiner in conjunction with the examination. All indicated studies, tests, and evaluations deemed necessary should be performed. The VA examiner shall elicit from the Veteran and record a complete medical history and report detailed examination findings referable to the claimed ED. The examiner should provide opinions as to the following: (a) Whether it is at least as likely as not (a 50 percent or greater probability) that any ED diagnosis is related to incident, injury, or event in active service, to include being caused or aggravated by in-service herbicide exposure; and (b) Whether it is at least as likely as not that any current ED diagnosis is causally related to and/or increased in severity by the service-connected PTSD. The examiner should clearly outline the rationale for any opinion expressed. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. 4. After completing the above development, and any additional development deemed necessary, readjudicate the claims in light of all the evidence of record. If any benefit sought on appeal remains denied, then a fully responsive supplemental statement of the case should be furnished to the Veteran and his representative and they should be afforded a reasonable opportunity for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).